Fall 2019 Moss & Barnett Advocate Whose Followers Are They? Establishing Ownership of Company Social Media Accounts By Aylix K. Jensen 2 How the Private Sector Can Help Solve the Affordable Housing Problem By Caroline A. Simonson 6 Hurry Up Faster on Bid Protests By Jeffrey A. Wieland 7 ALSO IN THIS ISSUE: 3 Alerts 4 Attorney Devlan Sheahan Joins Our Team Midwest Real Estate News Lists Moss & Barnett Among Top Law Firms for Real Estate in 2019 5 Moss & Barnett is Proud to Recognize 8 Moss & Barnett − Spirit of Giving 9 Spirit of Giving – Breaking Free 10 M&B Cares Whose Followers Are They? Establishing Ownership of Company Social Media Accounts A strong social media presence is an essential marketing tool for most businesses. It is common for businesses to designate an employee to manage and provide content for their company’s social media accounts (e.g., Twitter, Instagram, and Facebook). However, many businesses are unaware that, along with Texas transferring control over their social media accounts, they may In In re CTLI, LLC, No. 14-33564, 528 B.R. 359 (Bankr. S.D. Tex. also be transferring valuable property rights and trade secrets to 2015), a former business owner refused to relinquish control the designated employee. over the business’s social media accounts when the business fi led for bankruptcy protection. The former business owner claimed While the law is fi nally catching up with technology and some ownership of the accounts, arguing that he invested his time and courts are addressing this issue, the results have been inconsistent. personality into their development. The court determined that Some courts have determined that the social media account the social media accounts were the property of the business’s created by an employee (including all of its “followers” and “likes”) bankruptcy estate. belongs to the employee who controls access to the account. In those cases, the businesses have not only lost the legal battle New York but also valuable property rights. In Ardis Health, LLC v. Nankivell, No. 11 Civ. 5013, 2011 WL Inconsistent Court Rulings 4965172 (S.D.N.Y. Oct. 19, 2011), a former employee refused to turn over her login information for the company’s social media Pennsylvania accounts, which she managed during her employment. At the In Eagle v. Morgan, No. 11–4303, 2012 WL 4739436 (E.D. Pa. start of her employment, the employee executed an agreement Oct. 4, 2012), an employee sued her former employer for acknowledging that all work created or developed by her “shall continuing to use the LinkedIn profi le she created for the company be the sole and exclusive property” of the employer. The court after her employment was terminated. Finding that the company found that the employer indisputably owned the rights to had no clear social media ownership policies in place, the court the social media account access information pursuant to the determined that the employee owned the LinkedIn account. written employment agreement. California Create a Robust Policy and Agreement In PhoneDog v. Kravitz, No. C 11–03474 MEJ, 2011 WL Business owners should implement a customized social media 5415612 (N.D. Cal. Nov. 8, 2011), an employer sued one of its policy and employment agreement that bind owners and former employees for refusing to turn over login and password employees regarding the creation, maintenance, and ownership information for the company’s Twitter account. During his of company social media accounts. This proactive approach may employment, the employee accumulated 17,000 followers for prevent many of the problems that are arising in this rapidly the account. Upon leaving the company, the employee changed developing area of law. his username, but retained the original followers. The former employee then used the Twitter account to promote his new Aylix K. Jensen is a member of our Financial Services employer — a competitor of his ex-company. Among other group. She practices in the areas of compliance and litigation related to the Fair Debt Collection Practices claims, the employer alleged misappropriation of trade secrets Act, the Fair Credit Reporting Act, and the Telephone in its complaint. Denying the employee’s motion to dismiss the Consumer Protection Act, as well as other related state complaint, the court found that the Twitter account and its and federal laws and regulations. password could constitute a trade secret under California law. 612-877-5434 | [email protected] The case ultimately settled. LawMoss.com/people-aylix-k-jensen 2 Alerts 1 Changes to Minnesota Deed Tax Minnesota imposes a tax on each instrument that conveys an interest in Minnesota real estate. Currently, if the consideration for the conveyance, minus the amount of liens that continue after the conveyance, exceeds $500, the tax is $.0033 ($.0034 for Hennepin and Ramsey counties) of that net consideration. If the net consideration is $500 or less, a minimum tax of $1.65 ($1.70 in Hennepin and Ramsey counties) is imposed. This year the Legislature increased the threshold for minimum state deed tax to net consideration of $3,000 or less, effective for deeds presented for recording after December 31, 2019. This also means that an electronic Certifi cate of Real Estate Value (eCRV) will be required for deeds recorded after December 31, 2019, only if the net consideration exceeds $3,000. This change should facilitate some very small real estate transactions. However, it is still prudent to consult with legal counsel before recording a deed or other real estate conveyance instrument. 2 Minneapolis Adopts Ordinance Imposing Additional Requirements on Employers Many employers are aware that, on July 1, 2019, Minnesota law was amended to require that Minnesota employers provide a written notice with specifi ed content to each new employee at the outset of the employment relationship. This statute has been referred to as the “wage theft” statute. Recently, as a follow-up to the new state statute, the City of Minneapolis adopted an ordinance that mandates several additional requirements for the written notice to be given to new employees who work in the City. The ordinance also requires employers of personnel in Minneapolis to provide the written notice to existing employees during the fi rst pay period following January 1, 2020, which is the effective date of the ordinance. The ordinance applies to employees who work in Minneapolis for 80 hours or more in a year. The ordinance does not apply to persons who attend a convention, conference, training, educational class, or similar event in Minneapolis if they do not perform other work in the City for an employer. The ordinance requires that the notice document must include certain sick and safe time information, as well as the overtime pay rate and a statement that tip sharing is voluntary per state law. The ordinance also requires that the City’s notice poster must be distributed to employees at the start of employment. Employers are expected to receive and maintain copies of signed employee acknowledgment forms that confi rm receipt of the notice. 3 VoIP Telephone Remains Beyond the Minnesota Commission’s Jurisdiction On October 21, 2019, the United States Supreme Court declined to hear the Minnesota Public Utilities Commission (“MPUC”) appeal regarding whether states can regulate Voice Over Internet Protocol (“VoIP”). The MPUC argued that the digital telephone is analogous to traditional telephone and that the FCC’s refusal to regulate VoIP left the door open for states to assert jurisdiction. The telecommunications company, Charter Communications, Inc., successfully challenged the state’s ability to regulate information services, like VoIP, and argued that using the internet to connect a call defi nes VoIP as an information service. This decision may have implications beyond telecommunications law. In a three-page concurring opinion joined by Justice Neil Gorsuch, Justice Clarence Thomas noted that he welcomed another case that would provide the Supreme Court with an opportunity to say whether the federal government’s decision not to regulate an industry preempts state regulation of that industry. “Giving pre-emptive effect to a federal agency policy of nonregulation thus expands the power of both the executive and the judiciary,” Justice Thomas wrote. If you would like assistance assuring best practices in these areas, please contact your attorney at Moss & Barnett. 3 Team News Attorney Devlan Sheahan Joins Our Team Devlan focuses his practice on construction law, specifically Devlan Sheahan assisting businesses and individuals involved in construction 612-877-5293 disputes and litigation. Prior to joining Moss & Barnett, Devlan [email protected] was a judicial law clerk for the Minnesota Court of Appeals for two years where he drafted bench memoranda and opinions on Construction Law civil and criminal matters. In law school, Devlan interned for the Wisconsin Innocence Project, the Wisconsin DOJ – Civil Litigation Unit, and the Wisconsin Public Defender’s Office, where he argued dozens of hearings in state court. Midwest Real Estate News Lists Moss & Barnett Among Top Law Firms for Real Estate in 2019 We are pleased to announce that Midwest Real Estate News “We are honored to be recognized by Midwest Real Estate News has named Moss & Barnett among the top regional law firms as one of the leading real estate law fi rms in the Midwest. We for real estate in 2019. Each year, Midwest Real Estate News are grateful for the many relationships that provide us with the issues its “Best of the Best” edition, which ranks the industry’s opportunity to work on challenging and exciting transactions top law fi rms from 14 Midwestern states based on the number throughout the region,” said Tim Gustin, chair of Moss & Barnett's of real estate transactions in the past year that occurred within Real Estate group.